De Varda v The Board of the Strathfield and District Hebrew Congregation [2013] NSWSC 920

De Varda v The Board of the Strathfield and District Hebrew Congregation [2013] NSWSC 920

The proceedings had already been dismissed by Nicholas J and remained dismissed; the plaintiffs had not made a proper application to set aside that dismissal under the Uniform Civil Procedure Rules, and the material relied on did not show irregularity, want of good faith, or fraud. The alleged difference between versions of the statement of claim had already been considered by Black J and, in any event, either version manifestly failed to comply with pleading requirements. With no extant proceeding, there was no basis for amendment, examination orders, staying costs orders, or trial by jury.

Jurisdiction
Australia
Judgment Date
05 July 2013
Procedural Posture
Equity Division Procedural Ruling on Notices of Motion and Requisition for Trial by Jury / Applications to Reopen or Extend Time, Amend Pleadings, Stay or Set Aside Costs Orders, Refer Matters to the Director of Public Prosecutions, and Obtain Trial by Jury After Proceedings Had Been Dismissed
Outcome
Applications to reopen, to amend, and for trial by jury dismissed.
Legal Topics
['application to Reopen Proceedings' 'setting Aside Judgments or Orders' 'amendment of Pleadings' 'trial by Jury' 'costs' 'inherent Power to Set Aside Orders for Fraud']
['practice and Procedure' 'civil Procedure' 'equity'] ['application to Reopen Proceedings' 'setting Aside Judgments or Orders' 'amendment of Pleadings' 'trial by Jury' 'costs' 'inherent Power to Set Aside Orders for Fraud']

Case Brief

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Procedural Posture

Equity Division Procedural Ruling on Notices of Motion and Requisition for Trial by Jury / Applications to Reopen or Extend Time, Amend Pleadings, Stay or Set Aside Costs Orders, Refer Matters to the Director of Public Prosecutions, and Obtain Trial by Jury After Proceedings Had Been Dismissed

Legal Issues

  1. 1 ["Whether time should be extended for compliance with Hallen AsJ's orders and leave granted to file a further further amended statement of claim." 'Whether the plaintiffs showed irregularity, want of good faith, or fraud sufficient to reopen or set aside the dismissal of the proceedings.' 'Whether persons could be ordered to attend court to be examined on documents not filed in the court.' 'Whether previous costs orders should be stayed or set aside.' 'Whether a trial by jury could be ordered where there was no extant proceeding.']

Ratio Decidendi

The proceedings had already been dismissed by Nicholas J and remained dismissed; the plaintiffs had not made a proper application to set aside that dismissal under the Uniform Civil Procedure Rules, and the material relied on did not show irregularity, want of good faith, or fraud. The alleged difference between versions of the statement of claim had already been considered by Black J and, in any event, either version manifestly failed to comply with pleading requirements. With no extant proceeding, there was no basis for amendment, examination orders, staying costs orders, or trial by jury.

Court Disposition

Applications to reopen, to amend, and for trial by jury dismissed.

Orders

  • ['Each of the notices of motion was dismissed with costs.' 'The exhibits were ordered to remain with the file.']